Wooldridge v. Coughlin

• Decision Date: 08 April 1899
• Citation: 46 W.Va. 345,33 S.E. 233
• Parties: WOOLDRIDGE. v. COUGHLIN et al.
• Court: West Virginia Supreme Court

33 S.E. 233

46 W.Va. 345

WOOLDRIDGE.

v.COUGHLIN et al.

Supreme Court of Appeals of West Virginia.

April 8, 1899.

Way of Necessity—Prescription.

1. A way of necessity exists where land granted is completely environed by land of the grantor, or partially by his land and the land of strangers. The law implies from these facts that a private right of way over the grantor's lands was granted to the grantee as appurtenant to the estate.

2. Use of a private way from one's land over land of another for 10 years with the acquiescence of that other will confer a right to suchway, but, if the landowner does not acquiesce therein, but denies the right of way, such use will not confer the right of way.

(Syllabus by the Court.)

Appeal from circuit court, Fayette county; J. M. McWhorter, Judge.

Suit by Thomas Wooldridge against Cornelius Coughlin and others. Decree for plaintiff, and defendants appeal. Affirmed.

A. D. Preston and J. W. Davis, for appellants.

St. Clair, Walker & Summerfield, for appellee.

BRANNON, J. Wooldridge sued out an injunction in the circuit court of Fayette against Coughlin to enjoin Coughlin from obstructing and hindering Wooldridge in the use of a private way leading from land of Wooldridge, over land of Coughlin, to a public road, and, the injunction having been perpetuated, Coughlin appealed to this court. The facts of the case are that Cabell, being owner of a large tract of land in Fayette and Greenbrier counties bordering on the east side of a public highway called the "Old State Road, " on September 2, 1871, conveyed out of said tract a tract containing 1, 460 acres, no part of which touched the old state road, thus leaving Cabell yet owner of the land intervening between the land conveyed to Hurley and the old state road. On May 22, 1873, Cabell conveyed to Coughlin two tracts, being parts of said large tract, bordering on the old state road, and lying between it and the Hurley land, and cutting the Hurley land off from said public road. On June 27, 1882, Hurley conveyed to Wooldridge 105 acres out of the 1, 460 acres, said 105 acres lying back of and adjoining the Coughlin land. Thus Wooldridge and Coughlin derived title from a common source (Cabell), the Wooldridge title emanating from Cabell first in time. When the 1, 460-acre tract was conveyed by Cabell to Hurley, the land was in a state of nature, and, so far as appears, that part of it conveyed by Hurley to Wooldridge remained in a state of nature until 1882, when Wooldridge moved upon it, made large improvements, built a dwelling upon it, and resided upon it from 1882 until he brought this suit. Wooldridge claims a way of necessity. I think there can be no doubt that, the instant Cabell conveyed to Hurley, Hurley had, under the law, a way of necessity to the old state road, because between Hurley's land and that road Cabell owned the land, and on the other side, back of the Hurley land, rises a high mountain, and, except the land then yet owned by Cabell, the Hurley land was cut off from access to the outer world by lands of other parties. The Wooldridge land has no access to a public road, no outlet to court house, church, mill, school, or other public places, except over the Coughlin land, because a high mountain rises on the other side, and land of another party (Brown) cuts it off from outlet to the world. It seems that Wooldridge can get out, and does get out oc casionally, to a road in process of construction, called the "Summers County Road"; but it seems that to do so he has to go up the mountain by a steep grade, and pass through land of not only Hurley, who would be under obligations to concede Wooldridge a way of necessity, but also Brown, a third party, who would not be under such obligations; and the said Summers county road is incomplete, ending in the woods, without connecting with any public road. Thus this outlet cannot be said to dispense with the way of necessity vested in Wooldridge existing by reason of the conveyance by Cabell to Hurley, and the necessity of a way over Cabell's remaining land in favor of Hurley. This right of way was appurtenant to Hurley's estate in the land, if it existed, and is appurtenant to Wooldridge's estate in his land as an alienee of Hurley. I think such way of necessity exists. "A way of necessity exists where the land granted is...